AMIN YOUSEF v. GENERAL DYNAMICS CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0391-09T10391-09T1

AMIN YOUSEF and KHWALA YOUSEF,

Plaintiffs-Respondents,

v.

GENERAL DYNAMICS CORPORATION,

and HERTZ INC.,

Defendants,

and

GENERAL DYNAMICS-ORDINANCE AND

TACTICAL SYSTEMS, INC., and

DAVID EDMONDS,

Defendants-Appellants.

___________________________________

CRANE D. ROBINSON and JEANNIE

ROBINSON,

Plaintiffs-Respondents,

v.

GENERAL DYNAMICS CORPORATION,

HERTZ CAR RENTALS, HERTZ

INTERNATIONAL, and GEICO

INSURANCE COMPANY,

Defendants,

and

GENERAL DYNAMICS-ORDINANCE AND

TACTICAL SYSTEMS, INC., and

DAVID EDMONDS,

Defendants-Appellants.

_________________________________________________

 

Argued January 13, 2010 - Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-6827-07 and L-6874-07.

Kenneth M. Labbate of the New York bar, admitted pro hac vice, argued the cause for appellants (Mount, Cotton, Wollan & Green-grass, attorneys; Jeffrey S. Weinstein, of counsel; Mr. Weinstein, Mr. Labbate and Steven A. Torrini, on the briefs).

Donald P. Jacobs argued the cause for respondents Amin Yousef and Khwala Yousef (Jaloudi & Forsa, L.L.C. and Budd Larner, P.C., attorneys; Mr. Jacobs and Nicholas Forsa, of counsel and on the brief).

LaBarbiera & Martinez, attorneys for respon-dents Crane Robinson and Jeannie Robinson, join in the brief of respondents Yousef.

No other briefs were filed.

PER CURIAM

In this appeal, we consider whether New Jersey is an inappropriate forum for the personal injury claims asserted by New Jersey residents against a Florida resident and an American corporation resulting from a South African motor vehicle accident. Because plaintiffs' choice of a New Jersey forum was not "demonstrably inappropriate," D'Agostino v. Johnson & Johnson, Inc., 225 N.J. Super. 250, 262 (App. Div. 1988), aff'd, 115 N.J. 491 (1989), the judge did not abuse his discretion in denying the motion to dismiss on forum non conveniens grounds notwithstanding the difficulties that may be encountered in accessing evidence in South Africa and notwithstanding defendants' apparent inability to assert a claim against the municipality in which the accident occurred.

Plaintiffs Amin Yousef and Crane Robinson (plaintiffs), residents of New Jersey, were injured on September 16, 2006 in a motor vehicle accident in the Republic of South Africa. Plaintiffs were passengers in a vehicle rented by defendant General Dynamics-Ordinance and Tactical Systems, Inc. (GDOTS) and operated by GDOTS's employee, defendant David Edmonds, a Florida resident. Plaintiffs were employed by the Armament Research, Development & Engineering Center of the United States Army, and were traveling with Edmonds on business. Plaintiffs allege that Edmonds negligently failed to heed a stop sign, causing the rented vehicle to be broadsided by another vehicle traveling through the intersection.

Plaintiffs filed separate complaints in the trial court on September 14, 2007. Alleging diversity of citizenship and an amount in controversy in excess of $75,000, defendants GDOTS, General Dynamics Corporation and Edmonds removed both suits to the United States District Court for the District of New Jersey, where they were consolidated; those defendants then moved, on May 29, 2008, to dismiss the consolidated actions based on the doctrine of forum non conveniens. In November 2008, the district court remanded the actions to the superior court due to the lack of subject matter jurisdiction; the district court declined to rule on the motion to dismiss.

Defendants moved on February 4, 2009 in the trial court for a dismissal on forum non conveniens grounds. Judge Joseph S. Conte denied the motion on March 20, 2009. GDOTS and Edmonds moved for leave to appeal. After we denied that motion, GDOTS and Edmonds moved in the Supreme Court for leave to appeal. The Court granted the motion and remanded for our consideration of the merits of the appeal. 200 N.J. 363 (2009).

GDOTS and Edmonds (collectively referred to as defendants) argue that the action should have been dismissed in order that the claims could be pursued in what they claim is the only appropriate venue -- the Republic of South Africa. They claim that Judge Conte's balancing of the necessary factors was flawed and that a proper weighing would reveal that New Jersey is a demonstrably inappropriate forum based upon what defendants claim is the extreme prejudice they will suffer if forced to litigate in New Jersey. We disagree and affirm.

Our Supreme Court has observed that the essence of the doctrine of forum non conveniens "'is that a court may decline jurisdiction whenever the ends of justice indicate a trial in the forum selected by the plaintiff would be inappropriate.'" Kurzke v. Nissan Motor Corp., 164 N.J. 159, 164 (2000) (quoting D'Agostino, supra, 225 N.J. Super. at 259). Its application is left to the trial judge's sound discretion. Id. at 165. As a result, our appellate courts will not disturb a trial judge's decision "'unless there is a showing of clear abuse of that discretion.'" Ibid. (quoting Civic S. Factors Corp. v. Bonat, 65 N.J. 329, 333 (1974)).

In guiding the trial courts' exercise of discretion in such matters, the Court has adopted the analytical framework developed by the Supreme Court of the United States in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). This framework includes both public-interest and private-interest factors. The public-interest factors call for a consideration of whether it is fair or appropriate to burden the forum with the litigation:

Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

[Id. at 508-09, 67 S. Ct. at 843, 91 L. Ed. at 1062-63; see also Kurzke, supra, 164 N.J. at 165.]

The private-interest factors require analysis of the relative burdens imposed on the parties and the forum court's ability to fairly and expeditiously adjudicate the particular disputes:

[T]he relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex," "harass," or "oppress" the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy.

[Gulf Oil, supra, 330 U.S. at 508, 67 S. Ct. at 843, 91 L. Ed. at 1062; see also Kurzke, supra, 164 N.J. at 166.]

The Gulf Oil Court concluded that "the plaintiff's choice of forum should rarely be disturbed . . . unless the balance is strongly in favor of the defendant." Ibid.

In summarizing these principles, our Supreme Court has declared that a plaintiff's choice of forum "may not be defeated upon a mere balance of conveniences," Kurzke, supra, 164 N.J. at 170 (quoting D'Agostino, supra, 225 N.J. Super. at 262), and emphasized that "New Jersey courts should be especially accommodating to their own citizens seeking justice at home," id. at 171. The Court explained that:

"[A]n action by or against a resident will ordinarily not be dismissed as being in an inconvenient forum . . . ." [Gore v. United States Steel Corp., 15 N.J. 301, 311 (1954)]. Although domestic residence is not decisive, "there is a strong presumption in favor of retaining jurisdiction where the plaintiff is a resident who has chosen his [or her] home forum. A nonresident's choice of forum is entitled to substantially less deference." D'Agostino, supra, 225 N.J. Super. at 262 (citation omitted). The United States Supreme Court has explained that "[w]hen the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S. Ct. 252, 266, 70 L. Ed.2d 419[, 436] (1981).

[Kurzke, supra, 164 N.J. at 171.]

The Court concluded that, "in the final analysis, to dismiss on the basis of forum non conveniens, the choice of forum must be 'demonstrably inappropriate.'" Id. at 171-72 (quoting D'Agos-tino, supra, 225 N.J. Super. at 262).

We lastly observe that, in Kurzke, the Court expressed concern with the timing of such a motion, holding that "to grant a dismissal when discovery has not yet commenced or is in its early stages is premature." 164 N.J. at 167 (citing D'Agostino, supra, 115 N.J. at 494 n.1). Here, the current state of discovery is not entirely clear to us, but no party has argued that the judge's ruling on the motion was premature and the Supreme Court has directed that we examine the merits. Accordingly, we consider the trial judge's balancing of the public- and private-interest factors based on the existing record without concern for the timing of the motion.

In arguing that the public-interest factors suggest South Africa is the better forum, defendants refer to: South Africa's interest in maintaining its roadways for users; the fact that South African medical professionals were the first to treat plaintiffs; the owners of the involved vehicles are South African; and South Africa's interest in adjudicating a dispute arising from an accident within its borders. In light of these circumstances, defendants contend that it would improper to impose on New Jersey's courts and residents the burden of deciding this dispute.

On the other hand, plaintiffs urge that: they are New Jersey residents; defendants are United States residents; GDOTS does business in New Jersey; and the injured plaintiffs were in South Africa at the time of the accident on business for the United States Department of Defense. These circumstances demonstrate that the dispute is hardly, as defendants suggest, purely a matter of South African interest. To the contrary, because all parties are United States citizens and plaintiffs are New Jersey residents, the matter is essentially an American dispute. And New Jersey is the most appropriate location for this dispute because of its interest in providing a forum for its residents as well as its interest in deterring wrongful or negligent conduct of corporations doing business within its borders. See D'Agostino, supra, 133 N.J. at 525. Moreover, plaintiffs have asserted that if compelled to litigate in South Africa, their claims would be subjected to lengthy delays. As the trial judge noted in his written opinion, "if the present action is heard in South Africa, the result would be that the matter may only be finalized in 2014, excluding appeals, due to a two-year long backlog of trials in the province and the automatic bifurcation of liability and damages in South African Courts, which would require another two year wait between the liability and damage phases of trial."

In balancing these circumstances, we again consider Gulf Oil's description of the public-interest factors. There, the Court expressed concern for the administrative difficulties that follow from having litigation "pile[] up in congested centers," and gave considerable weight to having matters of local interest decided "at home." Gulf Oil, supra, 330 U.S. at 508-09, 67 S. Ct. at 843, 91 L. Ed. at 1062-63. Although some of the superficial circumstances may suggest a strong link with South Africa, a deeper analysis reveals that the matter is largely American because it consists of a dispute between the New Jersey plaintiffs, on the one hand, and an American corporation, which does business in New Jersey, and that corporation's employee, who is a Florida resident. Even the principal fact upon which defendants' motion was based -- that the motor vehicle accident occurred in South Africa -- has, upon closer scrutiny, little impact. That is, defendants argue that South Africa has an interest in suits that may, upon adjudication, impact upon the design and maintenance of its roadways. However, the record reveals that the intersection has already been redesigned, suggesting that the mere happening of this accident or others may have already provoked a response and that the ultimate adjudication of this dispute in South Africa is unlikely to further affect South African interests. Coupling these facts with the delays that would follow if this action were litigated in South Africa -- due to the severe backlogs in the South African courts -- convincingly demonstrates that a balancing of the public-interest factors warrants a rejection of defendants' forum non conveniens motion.

As the name suggests, private-interest factors require consideration of the impact a plaintiff's choice of forum has, not on the forum itself or its policies, but on the parties, the witnesses and the availability of evidence. We agree with Judge Conte's conclusion that a balancing of the private-interest factors "in the present case is extremely close." Weighing most heavily in favor of defendants is their contention that they will be unable to pursue a claim for contribution or indemnification from the municipality in which the accident occurred. Specifically, defendants contend there were deficiencies in the design of the intersection and the signs posted, which would permit a jury to find the municipality negligent. Although this contention is supported only by a conclusory affidavit of a South African attorney, the judge assumed, as will we, that defendants will not be able to pursue a claim against the municipality if plaintiffs' claims are adjudicated in New Jersey. This fact, however, is offset by defendants' ability to provide evidence to the jury about the intersection and signage prior to and at the time of the impact, which could be amply demonstrated, as in most cases regarding accidents occurring in New Jersey, through the use of photographs or videotape, and their right to argue that Edmonds' operation of the vehicle was reasonable under all the circumstances.

We also find that the suggested discovery difficulties are also insufficient to tilt the scale in defendants' favor. Defendants' argument that treating physicians, police officers and other potential witnesses and records are located in South Africa represents an oversimplification of the legal analysis and the impact on the parties caused by a New Jersey forum. The fact is that although plaintiffs were treated in South Africa following the accident, they have also undergone considerable medical treatment in New Jersey and, while it may be of interest to the jury to hear from doctors who treated plaintiffs immediately after the accident, other doctors who have since treated plaintiffs are here in New Jersey. According to the record on appeal, these New Jersey physicians are unwilling or unable to travel to South Africa for a trial just as the South African physicians may be unwilling or unable to travel to New Jersey for a trial. Moreover, the potential inability to secure the testimony of any South African doctors for use in a New Jersey trial would appear to be more a detriment to plaintiffs than defendants since it is plaintiffs' burden to prove their damages and their proofs may suffer from the unavailability of the South African doctors who treated plaintiffs following the accident.

Defendants have also referred to the need to obtain discovery from a South African tow truck operator, who provided an affidavit containing his assertion that there had been "numerous other collisions" at this intersection in the few years preceding the accident in question. He asserted that "the stop sign at the intersection was bent or tilted in such a manner that a driver unfamiliar with the road conditions and traffic signage in the immediate vicinity would not have noticed same." That defendants were able to secure the tow truck operator's cooperation in obtaining this affidavit strongly suggests their ability to obtain his cooperation for a videotaped de bene esse deposition for use at a New Jersey trial. Moreover, absent further illumination, this anecdotal information does not seems critical to a disposition of the suit's merits.

The record on appeal also indicates the existence of a factual dispute regarding whether there were seat belts available for rear passengers in the rented vehicle operated by Edmonds. Defendants argue that the maintenance of this suit in New Jersey will hamper the discovery of relevant information located in South Africa on this point. Specifically, defendants contend there is a need to inspect the vehicle to determine the availability of seat belts for backseat passengers. However, defendants also acknowledge that there already exists a "detailed post-accident inspection of the damage suffered by the van," which was completed by a South African company retained by Hertz. That report is in the record on appeal and defendants have not shown that Hertz, which is a party to this suit and a New Jersey corporation, would not make available the entity it hired to conduct the inspection.

We assume that the seatbelt dispute might be enhanced by resort to records concerning its manufacture by Volkswagen or its condition when purchased by Hertz, as well as by information gathered during the post-accident inspection. Defendants have not demonstrated that this information cannot be obtained for use at a New Jersey trial. And, although resolution of the dispute might benefit from a current examination of the vehicle, defendants have not demonstrated that its current South African owner would not permit such an examination or that any photographs or depictions of the vehicle that might be obtained in the future could not be made available for purposes of this case.

Our comments regarding the obstacles that may be encountered as the matter progresses in our courts should not be misconstrued. We recognize the difficulties presented by this case if it remains in this forum. But we also recognize that the challenges that would be imposed on plaintiffs, were we to reverse, are equally or even more burdensome than those now faced by defendants. Most noteworthy is that the record on appeal contains certifications from six physicians, each of whom stated that plaintiff Yousef, who is confined to a wheelchair and suffers from brain trauma, severe visual impairment, and other ailments, is physically incapable of traveling to South Africa. If we were to shut our courts to plaintiffs, they would unfairly face dilution of the thrust of their factual presentation to a South African jury by having to videotape a significant portion -- if not the entirety -- of the testimony they would offer in their case-in-chief.

To be sure, difficulties would be presented wherever this suit may have been lodged because there are individuals and information in both this country and South Africa. It is an unfortunate but unavoidable fact that this suit involves claims between and among United States citizens regarding a motor vehicle accident that occurred in South Africa. But the record does not permit a determination that the burdens faced by defendants are more onerous than those that would be faced by plaintiffs if compelled to pursue their personal injury claims in South Africa. Based on that assessment, we cannot conclude, despite defendants' forceful arguments, that plaintiffs' choice of forum was "demonstrably inappropriate." D'Agostino, supra, 225 N.J. Super. at 262. As a result, we find no abuse of discretion in the judge's denial of defendants' motion to dismiss.

 
Affirmed.

The caption improperly identifies David Edmonds as "Edmunds."

The other plaintiffs are their spouses, who have asserted per quod claims.

At or about the same time, the parties consented to the dismissal without prejudice of the action against General Dynamics Corporation.

Hertz Corporation did not join in the removal petition or the motion to dismiss on forum non conveniens grounds. Instead, Hertz moved for summary judgment; the record does not indicate the outcome of that motion or whether it was heard prior to leave to appeal being granted.

South African police investigated and filed a report regarding the accident, but no police responded to the scene on the day of the accident.

The vehicle drive by Edmonds was leased from Hertz, which is a New Jersey corporation; the present owner is a South African resident. The identity of the owner or driver of the other involved vehicle was never determined, so his or her residence is hardly relevant to the present analysis.

The record on appeal suggests that plaintiffs' claims against defendants and defendants' claims against the municipality are now time-barred. Although defendants represent that they would waive the time-bar, there is no guarantee that the waiver would be endorsed by a South African court and there is no suggestion that the municipality would also be willing to waive the time-bar. As a result, defendants' argument that New Jersey constitutes an inappropriate forum because the municipality may not be joined here loses its thrust in light of the uncertainty as to whether any of these claims could now be pursued in South Africa.

The parties acknowledge that the intersection has been reconfigured since the accident. Accordingly, there is no reason why the trial should occur in the locality where the accident occurred. A view of the intersection by the factfinder would not be enlightening -- and, indeed, might be misleading -- due to the subsequent changes in the intersection. Moreover, as Judge Conte correctly observed, juries are rarely taken to the location of a motor vehicle accident and, in fact, in preliminary instructions given after a jury is sworn but prior to opening statements, a judge must provide to the jury the following simple yet unequivocal direction: "While this case is pending, you must not visit [the scene of the accident]. That area may have changed from the time of [the accident] until now." Model Jury Charges (Civil), 1.11C, "Jurors Not to Visit the Accident Scene or Do Investigations" (2007).

Defendants also refer to statements in a report compiled by local police that contains an indication that the road signs in question were "not good." Because the report is in the record on appeal, we must conclude that any decision by South Africa not to participate in the Hague Convention has imposed no impediment to the obtaining of the police report.

(continued)

(continued)

17

A-0391-09T1

March 3, 2010